IBM BREACHES CONTRACT: ORDERED BACK TO JURY TRIAL BY FEDERAL COURT

Transcription

1 IBM BREACHES CONTRACT: ORDERED BACK TO JURY TRIAL BY FEDERAL COURT Finding that Defendant IBM had modified a pre-trial settlement agreement with Plaintiff Mark Cring in his case against the IBM Corporation, the U.S. Federal District Court in Tampa, Florida has ordered case No. 8:00CV2022 back to a jury trial by granting the Plaintiff s motion for reinstatement due to Defendant s willful breach of settlement contract. That case, which charges that IBM illegally fired 18 year employee Mark Cring through a pretext just days after he reported charges of an ongoing hostile work environment to the U.S. E.E.O.C., was originally dismissed by the Court after IBM reported that a settlement agreement had been reached in early May Plaintiff was compelled to file a motion for reinstatement claiming that IBM had negotiated that agreement in bad faith solely for the purposes of getting the case against them dismissed, and then later knowingly refused to execute the same contract as originally stipulated in a Court conference two months earlier. The case was dismissed by the Court in response to that announced settlement, but allowed for the provision of reinstatement for just cause. The case would have originally gone to a trial by jury as early as June 2002, after the Court ruled that there was sufficient evidence of illegal retaliation against the Plaintiff in denying IBM s motion for summary judgment. IBM announced a settlement agreement had been reached after their motion was denied. In opposition to the Plaintiff s motion, Defendant IBM stated that the Court should now, more than six months later, enforce that settlement contract without reinstatement, even though the parties never signed a final copy of a settlement agreement and continue to dispute its exact terms. The Court further stated that since the parties had clearly demonstrated that a final settlement was never reached, the Court cannot simply summarily enforce a non-existent contract, and 1

2 therefore, the Plaintiff s motion should be granted and the case rescheduled for trial by jury. The Clerk of the Court has indicated that the case would proceed onto trial by jury in the December docket, which is already being contested by IBM who is attempting to further delay the case into BACKGROUND: In his case, Plaintiff Mark Cring alleges that he, and other employees, were routinely subjected to a hostile work environment by his managers, who felt empowered by the IBM Corporation s new attitude of ridding the company of older employees by allowing the constructive use of both physical and emotional harassment, including managers producing loaded handguns in the workplace and further encouraging younger newly hired employees to threaten violence, even death, against targeted older workers. IBM documented policy does not allow any employee, including managers, to possess firearms in the workplace or tolerate the threat of violence among employees, regardless of reason or intent. IBM apparently continued to ignore the concerns of employees against these managers for an unduly prolonged period of time, even though those concerns were found by IBM to be justified before IBM terminated the Plaintiff. According to the IBM Business Conduct Guidelines that every employee is required to read, sign, and abide by, either producing a firearm or threatening violence on company grounds are in and by themselves suitable grounds for immediate dismissal. However, the offending IBM managers and employees remain at IBM Tampa, and only the Plaintiff, who filed Federal charges against IBM, was terminated, despite having a personnel record of no interpersonal conflicts or other egregious activity to warrant his termination in comparison. The 2

3 offending manager that knowingly promoted the use of violence in his departments and brought handguns into the workplace stated that the Plaintiff had come in late after working overtime the night before and should have been terminated, yet still no adequate documentation has been produced by the Defendant in this case to support those claims. Similarly, almost every other department member was allowed to flex their work schedules with little or no notice, but none were equally threatened with dismissal. Plaintiff s personnel records even document that the very same offending managers recently approved a positive annual review and associated merit pay increase just weeks prior to the Plaintiff s reports against them. Plaintiff has produced evidence showing that he routinely reported concerns to IBM management, and then sequentially escalated his concerns up through senior IBM officers and IBM HR when local management refused to address the dire and potentially violent situation known to them to exist within the Tampa workplace. This eventually included reporting those concerns directly to then IBM CEO Louis Gerstner, now current IBM chairman. Evidence produced also shows that the report to Mr. Gerstner resulted in an IBM internal investigation, which the Plaintiff claims was nothing more than an official ruse used to find fault with the Plaintiff for coming forward with those concerns against his management, even though IBM knew that those concerns were valid, and in fact justified. Plaintiff asserts that the treatment he received from IBM during the alleged internal HR investigation was wholly mean-spirited in nature, lacking sincerity, impartiality, and further refused to question Plaintiff s witnesses or specific items of concern, such as the continued presence of loaded handguns, continually rebuking the Plaintiff for requesting communications after weeks of silence, and even to the point of threatening the Plaintiff with dropping the investigation, idle at the time, should he continue to make any further inquiries as to their progress or produce further evidence of harassment. 3

4 That IBM HR investigation was deliberately and inordinately unduly prolonged over a period of six months, yet IBM HR still forced the Plaintiff to remain unprotected to further known blatant hostility without recourse. Standard documented IBM HR guidelines indicate that all internal investigations should be completed within 30 days. Considering the severe nature of the claims involving firearms and potential violence or even death, IBM should have immediately attempted to at least diffuse the situation, if not even resolve it, in a more expedient manner, rather than allowing that potential to further escalate, intentional or otherwise, in simply refusing to address the concerns in a timely and forthright manner with further obfuscation. Since the Plaintiff s reported concerns made directly to Mr. Gerstner started the IBM HR internal investigation, the Plaintiff has further identified Mr. Gerstner, among other managers including senior VP Mr. Doug Elix, as material witnesses within the case and has further declared that the actions taken against him by IBM were in fact done in the official name of and with the corporate authority of those officers. Both Mr. Gerstner and Mr. Elix have documented their own stated policies on workplace violence and harassment, yet neither was compelled to prevent such occurrences within their own workplace when made directly known to them. Mr. Elix even sent the Plaintiff an stating that he personally would not tolerate any form of retaliation or retribution for coming forward with complaints, regardless of whether those complaints were either internal or external to IBM in nature. At a later date, the Plaintiff s attorney notified Mr. Gerstner via certified mail that he had already advised the Plaintiff to seek outside assistance with the U.S. E.E.O.C. if IBM continued to ignore the Plaintiff s repeated requests for protection. IBM refused to respond to that notice, but later admitted to receiving it prior to the Plaintiff s termination. 4

5 Plaintiff further asserts that when he was compelled to hire an attorney to address his workplace concerns after being continually rebuffed by IBM HR and senior management for coming forward with continued complaints over a period of several months, harassment against him escalated to the point where he felt his personal safety was compromised and in direct jeopardy while he was within the IBM Tampa workplace. Plaintiff s attorney put IBM on formal notice of the Plaintiff s intention to pursue legal resolution through the U.S. E.E.O.C. as a direct result of IBM s refusal to address, let alone mitigate, the Plaintiff s concerns over the safety of himself and other coworkers within IBM Tampa. Witnesses have already testified that they were aware of IBM s actual declared intent to get even and provoke the Plaintiff into a violent situation in direct retribution for going forward onto the E.E.O.C. Evidence discovered by the Plaintiff shows that both IBM HR and IBM Legal then conspired against the Plaintiff after he had already indicated through his attorney that he would seek outside assistance via the U.S. E.E.O.C by stating that since the Plaintiff was the only employee coming forward to the E.E.O.C. with concerns, even though recognized as being valid and with merit, that the Plaintiff should now be targeted with termination. Plaintiff asserts that this was a direct attempt to shoot the messenger by IBM in an illegal attempt to cover up valid concerns of a hostile work environment in Tampa. Plaintiff further claims that IBM intended to use his termination as an example to other employees who may have reason to be worried about the IBM workplace, and how their concerns would be handled within the IBM internal investigation resolution process, which is required by the E.E.O.C. before their own official investigation can commence. Plaintiff asserts that IBM s abuse directed against him was willfully malicious and further intended to instill an atmosphere of complete and utter fear with cowering servility within IBM Tampa employees in effort to dissuade any further complaints against IBM, no matter how valid or justified those complaints may be. Employees in Tampa have gone 5

6 on record stating that they fear reprisal if they report concerns about their workplace to anyone at IBM. Federal Employment laws indicate that retaliation against any employee for coming forward with concerns made in good faith against their employers is in itself illegal. Previous Courts have upheld that those issues themselves do not have to be upheld, but only that a causal connection between the issues reported and any retaliation exists. The Court, in denying IBM s motion for summary judgment, stated that the Plaintiff had suffered the ultimate in adverse employment actions through IBM s act of termination. IBM previously claimed that the Plaintiff in fact had not suffered any adverse employment action through its act of termination through the use of a constructive discharge of the Plaintiff. Even by IBM s own internal findings, made well after the Plaintiff s initial complaints and notice of intent to proceed onto the E.E.O.C., yet before Plaintiff s termination, these managers had intentionally misled investigators and had in fact created a hostile work environment, by IBM s very own definition. However, IBM HR still refused to communicate this finding to the Plaintiff, and still forced him to remain within a now known hostile environment to be knowingly subjected to further harassment. Plaintiff asserts that this action was further attempt to inflict distress upon him in direct retaliation for going onto the E.E.O.C., otherwise, IBM would have immediately attempted to diffuse the situation or make reasonable accommodation. Curiously, IBM HR refused to follow their very own guidelines on harassment and the protection of employees, even when directly pointed out to them by the Plaintiff. After another violent confrontation with the same young newly hired employee already known to have threatened to kill the Plaintiff previously, IBM maliciously fired the Plaintiff for nothing more than attempting to protect himself from physical harm by claiming that he abandoned his job in leaving that hostile confrontation, willfully and knowingly forced upon him by IBM HR. Evidently, IBM 6

7 HR expected the Plaintiff to undertake a physical beating from this younger subordinate worker, who was already known to them as having a documented history of threatening violence in the workplace and a displayed animus towards older baby boomer workers. Additionally, the employee that was already known to make multiple threats against the Plaintiff was not similarly terminated, clearly indicating disparate treatment between an 18 year veteran employee with a commendable service record of promotion, and a younger new hire employee already known by IBM to be potentially violent and has already been found to have committed racial harassment against a different employee previously as described within an IBM internal report on the subject. This same employee has further been reported as committing sexual harassment against other female coworkers as well. Similarly, the manager that is known to have a record of violent temper tantrums and rages, allegedly committed acts of criminal harassment against employees, their spouses and/or children in the name of IBM, and to have regularly carry/produce loaded firearms and occasionally spinning the loaded gun chamber in his Tampa IBM office, remains employed at IBM. Plaintiff s work record obtained from IBM shows no complaints of a similar nature made against him, yet he was the only employee terminated, and under known extenuating circumstances by IBM HR and IBM Legal, including a still open internal IBM investigation. Additionally, the internal IBM HR investigation presumably started several months before by the Plaintiff s complaints to the CEO was itself only completed two weeks after IBM terminated the Plaintiff s employment. Discovered evidence indicates that after IBM HR refused to disclose their findings directly to the Plaintiff, IBM HR sent a letter composed by IBM Legal indicating that the Plaintiff was not found justified in his complaints. That letter was composed and mailed several days after the Plaintiff s termination, yet more than a month after different evidence discovered indicates that the same IBM HR people found that the Plaintiff s managers should be immediately removed from management, but still 7

8 employed. That internal letter of finding was deliberately withheld from the Plaintiff during his employment, further proving that IBM, as an entity, has no qualms when it comes to directly lying to their employees. The case further alleges that since IBM was and is aware that a hostile work environment existed, by their own finding, and that since only the person that complained to the E.E.O.C. was terminated after blowing the whistle on IBM for that hostile work environment officially sanctioned by IBM, which has the potential for extreme violence through gunfire, that potentially violent workplace still willfully and knowingly exists for current employees and any customers within the IBM Tampa location to this day. The Plaintiff further asserts that IBM indeed ratified their illegal actions by allowing employees known by them as being hostile to remain gainfully employed, while only terminating those employees who report the egregious violations to Federal authorities after refusing to take prudent and appropriate steps internally to resolve the hostile situation. In short, the Plaintiff asserts that he was terminated for following published IBM guidelines on Business Conduct & Ethics, and by the very same authorities within IBM who composed and upholding those very same documented doctrines. IBM has still steadfastly refused to reinstate, or even rehire, the Plaintiff, further reasoning, and hence declaring in factual acknowledgment, that the hostile work environment that resulted in his dismissal still exists within Tampa to this day and is ongoing. IBM did not have a plausible answer as to why the Plaintiff would not be allowed to transfer to any other work location other than Tampa or why they consider established harassment, production of loaded handguns, or violence non-threatening to any other Tampa employees or customers, even though they continue to recognize its existence. Apparently, the Defendant s retaliation is ongoing and complete in execution in that the Plaintiff was terminated by IBM without any severance pay after almost 18 years, any earned bonus due, the return of his personal belongings, 8

9 the outstanding out of pocket business trip expenses still owed him, and has frustrated the Plaintiff s attempts from obtaining suitable employment elsewhere. Applicable laws uphold that the Defendant is still required to reimburse the Plaintiff for these outstanding items, even if the termination was for just cause. The fact that IBM, as a complete entity, willingly and knowingly pursues such a contemptible path against their own employees by their own choice and design is in itself telling about the current IBM corporate attitude of treating their longtime employees in such an immoral, unethical, and blatantly illegal manner, which, unfortunately, still remains financially rewarding to IBM. All the actions described were apparently officially sanctioned throughout all levels of local and national IBM management, up to and including the IBM CEO. The Plaintiff further asserts that under these known circumstances, the non-payment of such items is nothing more than a multi-billion dollar corporation flagrantly stealing from their employees. Produced evidence also illustrates that Mr. Elix, among others within IBM, was made directly aware of this situation via certified registered mail, but refused to take any action to correct the situation. Now, as the U.S. Federal Court has already recognized in their rulings, if the IBM Corporation and their appointed legal counsel cannot even be trusted at their own word within U.S. Federal Court, what realistic expectation does the average IBM employee have of IBM in keeping their word to employees? 9